Bitter custody battles over Native American children have reached the U.S. Supreme Court, which will examine biology versus the best interests of a child, and culture and attachment.

At the heart of the argument is the constitutionality of the 1978 Indian Child Welfare Act, which prioritizes placement of Indian children with relatives, other Native Americans or a tribe to reinforce tribal identity. ICWA was intended to heal wounds for the harm done by social workers and adoption agencies for forcibly removing 25% to 35% of Native children, and placing them with white families or in group homes.

ICWA covers Native American children who live outside reservations, which puts them under state jurisdiction. The tribe has a voice in the proceedings. If a birth family is deemed unfit, the tribe can find an extended family, then an unrelated tribal family and, finally, another tribe. A judge can reject the tribe’s candidate for “clear and convincing” reasons.

Now, the law is vulnerable to fall. Opponents of ICWA say it is a race-based system, defined by a child’s genetics and ancestry that ignores equal protection. We hope, though, that ICWA survives legal scrutiny.

The Supreme Court consolidated four cases under Haaland v. Brackeen, scheduled to appear on the docket in the October 2022 to 2023 term.

Seven individuals and three states — Texas, Indiana and Louisiana — are challenging the law. The plaintiffs say ICWA requires state officials to put aside the standard of doing what is best for the child. They say it violates the Constitution’s promise of equal protection.

“ICWA operates as a unified scheme that places ‘Indian children’ in a disfavored position, depriving them of a placement decision based on their best interests, and instead requiring placements” based on the child’s biology, the individual plaintiffs said in their filing.

In September 2021, in her official capacity, U.S. Secretary of the Interior Deb Haaland, a member of the Pueblo of Laguna and a 35th generation New Mexican, petitioned the high court to uphold ICWA.

Overturning ICWA, would undermine sovereign tribal rights. Striking down this law could threaten guards over tribal water and land rights, and casinos, too. ICWA is more than a law. It implies a promise that harm done by forced assimilation won’t happen again.

In 2013, in a 5-4 decision, the Supreme Court ruled in Adoptive Couple v. Baby Girl that 3-year-old Veronica’s biological father, Dusten Brown, a member of the Cherokee Nation, did not have parental rights under ICWA because he “abandoned the (American) Indian child before birth and never had custody of the child.” In his concurring opinion, Justice Clarence Thomas said that in passing ICWA, the federal government may have interfered in family law, a topic constitutionally reserved to the states. The high court reversed the 2011 decision of the South Carolina courts, which ruled that under ICWA, the child be returned to her biological father.

We expect Thomas would favor striking down ICWA for equal-protection reasons. Justice Amy Coney Barrett has seven children with two adopted from Haiti. We’re wondering whether she should recuse herself from this case.

In Southwest Colorado, Martha Johnson, director of La Plata County Department of Human Services, said that if an American Indian child cannot return to a home because of safety issues, “we work with the tribe and the court to finalize permanency for that child in a home that the tribe approves.” Johnson also said most contacts have occurred with out-of-state tribes.

Madlynn Ruble, deputy director of communications for the Colorado Department of Human Services said, “CDHS is in support of the ICWA legislation, and works closely with our tribal partners to make sure we are following the law and tribal sovereignty.”

Each child-welfare case is different. It’s heart-wrenching to imagine the pain of losing a child to another family after becoming attached. But tribes must maintain authority. It keeps a Native child’s culture and heritage a matter of importance.

Durango Herald editorial board

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